People v. Buenrostro CA4/3

FACTS

Around 10:45 p.m. one evening, Maria L. and Goly T. were standing by Maria’s car in the parking lot of a Santa Ana strip mall. A homeless man named Ricardo was sitting nearby, under a tree, and his bicycle was leaning up against a van on the other side of the parking lot. Appellant, then age 21, was over by the bike, seemingly oblivious to Ricardo. But when appellant got on the bike, Ricardo called out “Hey, that’s my bike” and started hurrying toward him. Appellant responded by getting off the bike, pulling out a gun and pointing it at Ricardo. Seeing the gun, Maria and Goly ducked behind Maria’s car. From that vantage point, Maria could see Ricardo and appellant fighting. They went at it for about 20 seconds before the gun went off and Ricardo fell to the ground. Appellant fled the scene, without the bike. Maria and Goly ran into a nearby building, and when they returned to the scene a few minutes later, they saw Ricardo lying on top of the gun. He survived the single gunshot wound to his chest, but he was unavailable for trial. Because the parking lot was dimly lit Maria and Goly did not get a clear look at appellant. When the police showed them a six-pack lineup…